Place v. Hayward — 100 N.Y. 626

Majority

p. 626

Barker Place, as Executor, etc., Respondent, v. Jedediah K. Hayward, Appellant.

Headnote

Whether a court shall modify or change an order already.made by it is a question addressed to its discretion, and over its exercise an appellate court has no control.

(Argued October 20, 1885 ;

decided October 30, 1885.)

The following is the mem. of opinion herein:

“ On the 16th of April, 1881, the Supreme Court, at Special Term, upon affidavits, and after hearing counsel for both parties, made an order giving an allowance and costs to the defendant, against the plaintiff as executor, adding ‘ not to be paid by plaintiff personally.’ The defendant afterward, upon affidavits and other papers, and a notice to the plaintiff, applied to the court to modify that order by striking therefrom the words ‘not’ and ‘as executor.’ This was denied by the Special Term, and upon appeal to the General Term the order was affirmed. The appeal to this court is from the order. It cannot succeed. Whether a court shall modify or change an order already made by it is a question addressed to its discretion, and over its exercise an appellate court has no control. The appeal should, therefore, be dismissed, with costs.”

J K. Hayward, appellant, in person.

p. 627

Charles F. Wells for respondent.

reads for dismissal of appeal,

All concur.

Appeal dismissed.